Firm 22B Class of 2017 KSL
CLOSING ARGUMENT
Outline
a. Definition
b. Statutory Basis
c. Objectives
d. Techniques
Definition
Robin Palmer and David McQuoid-Mason in their book ‘Basic Trial Advocacy Skills’ define the closing argument as the stage of the trial where each of the opposing trial lawyers attempt to persuade the court to decide the case in his favour.
Black’s Law dictionary on the other hand defines closing argument as a term that is applied when the lawyer makes his summation in a trial.
A closing argument is thus a persuasive speech, delivered by the advocates of both the plaintiff and defendant (in a civil suit) and prosecution and defence (in a criminal case), that seeks to convince the judge into offering the parties a favourable verdict.
It is at this point that an advocate can comment on and compare motive and credibility of witnesses. Motive can be commented upon from either what came out directly as a fact or from a logical inference.
The trial advocate is also allowed ‘to use nearly all rhetorical tools and devices in support of his or her theory of the case, and closing argument is the only time during trial when the advocate can hold forth, uninterrupted, on the merits of his or her client’s case under the applicable legal standard.’[1]
Statutory Basis
In Kenya, the Civil Procedure Rules 2010 and the Criminal Procedure Code are the Statutes governing closing argument.
a) Civil Procedure Rules 2010
Order 18, rule 3 stipulate that:
“After the party beginning has produced his evidence then, if the other party has not produced and announces that he does not propose to produce evidence, the party beginning shall have the right to address the court generally on the case; the other party shall then have the right to address the court in reply, but if in the course of his address he cites a case or cases the party beginning shall have the right to address the court at the conclusion of the address of the other party for the purpose of observing on the case or cases cited.”
From the Rule it is clear that the Plaintiff will have the right to first give the closing argument, and the Defendant will have an automatic right to reply. In the instance that the Defendant cites cases, the Plaintiff will have a right to address the court on the cases brought up.
The Rule makes it mandatory for the plaintiff and defence to give the closing argument. The language is coached in a mandatory term, as the word ‘shall’ is used.
Written submissions in civil cases
In practice, the closing arguments are mostly reduced into writing in civil cases and the same is also served upon the opposing side, besides being filed in court. The court will then allocate time for the parties to give an oral highlighting of the arguments in an open court or at the judge’s chambers. This indicates that written submissions are not necessarily a replacement of the oral closing arguments, but merely used for convenience to assist the judge appreciate in depth the materials (case laws and laws) used.
b) Criminal Procedure Code
Subordinate Courts
Section 210 provides that:
“If at the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as the prosecutor and the accused person or his advocate may wish to put forward ….”
Section 213 provides that:
“The prosecutor or his advocate and the accused and his advocate shall be entitled to address the court in the same manner and order as in a trial under this Code before the High Court.”
The procedure in the High Court is that the prosecution begins, with defence having a right of reply. It thus means that the prosecution will exhaust its case and then give a closing argument and then the defence will put its case and subsequently give a closing argument.
High Court
Section 306(1) of the Criminal Procedure Code provides:
“When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence shall, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit…”
Language used in reference to the accused is permissive, in that, the word ‘may’ is used, and the accused has the choice to speak or not to.
Section 307(1):
“The accused person or his advocate may then open his case, stating the facts or law on which he intends to rely, and making such comments as he thinks necessary on the evidence for the prosecution; the accused person may then give evidence on his own behalf and he or his advocate may examine his witnesses (if any), and after their cross-examination and re-examination (if any) may sum up his case.”
The language used is permissive for the defence side, as the word ‘may’ is used. An accused is not under any obligation to say something; he may choose to remain silent.
Section 311:
“If the accused person says that he does not intend to give or adduce evidence… the advocate for the prosecution shall then sum up the case against the accused person, and the court shall then call on the accused person personally or by his advocate to address the court on his own behalf.”
Written submissions vs. oral arguments in criminal cases
Unlike in civil cases where written submissions are allowed and accepted in practice, the question as to whether the closing argument in criminal cases should be written has been a controversial topic and courts have tried to rule on the right way to do a closing argument in a criminal case.
In Akhuya v R,[2] the Court held that “…The Criminal Procedure Code provides a precedent for the making of submissions in the court. In no part of the legislation is there a mention of written submissions. A presiding officer of a court is expected to orally hear such submissions as both sides in a criminal case wish to make and to seek clarification of such submissions as found necessary, in order to appreciate each side’s case before delivering the opinion. The accused person is also supposed to hear those submissions and has the right to clarify any point raised or object it…for his benefit. Written submissions do not have any sanction of the law. Magistrates and judges who ask for or accept them deny the accused person a statutory right of orally persuading the court to grant him an acquittal…”
However in Henry Odhiambo Otieno v R[3], the court held that it is only when the express consent of the accused is not sought that written submissions is in fact a fatal mistake. But if it is the will of the accused, then written submissions can be accepted by the courts.
“It cannot be said that merely because the appellant’s counsel acceded to putting in written submissions, the accused thereby consented to that course of events. The question as to whether or not written submissions could be put in was not put to him. The Constitution envisages express consent...where written submissions are tendered without the accused’s express consent; the proceedings of the court concerned are thereafter rendered null and void…”
We can thus conclude that in practice, closing arguments in criminal cases are oral in nature unless the accused decides otherwise.
Objectives of the Closing Argument
a. Addressing the theme and theory of the case by connecting to the witness statements and documentary evidence adduced.
b. Reinforcing the points made in the opening statement.
c. Asking for a favourable verdict or judgment for the client.
d. Discussing the law- explaining how the law ought to be applied in the specific issues of the case.
e. Addressing the bad facts of a client’s case- undesirable facts may have been brought up during trial by the opposing counsel, and it is through the closing argument that the advocate may use the bad facts to his advantage instead of ignoring them.
Techniques/ How to Make An Effective Closing Argument
Technique can be refered to as the approach or style of doing something.
In order to tell a good story that is persuasive enough, there are various styles that a trial lawyer incorporates in order to make the version of the layer’s story believable.
a. Having a case theme
This is the title to the story being told. It gives persuasive force to the legal arguments and also serves as moral persuasion.
“In a contract case, for example, your theory will account for all the facts surrounding the formation and breach of the contract, as well as the relevant law, say of specific performance….your theme will strengthen your theory by underscoring why entering the verdict is the right thing to do. Perhaps your theme will be, ‘The defendant would rather try to make money than live up to a promise…or ‘This defendant tried to sell some property, and keep it too…”[4]
The case theme that was used during the opening statement should be what is reiterated when making the closing argument. It should be consistent right from the opening statement to the closing argument.
The theme should be captivating enough to catch the attention of the magistrate or judge.
b. Having a case theory
The story you want to tell is the theory of the case. A case theory suggests both factual and legal foundation of the story.
It is the combination of ‘your side’ of the story (facts) and the law in a manner that persuades court that your version is the true version.
A good case theory should be:
i. Legally sustainable;
ii. Supported by credible evidence;
iii. Consistent with common sense;
iv. As fair as possible.
In the case theory, it is not only the good facts of the story that should be told. There are bad facts that a story has and instead of ignoring the bad fact, which the opposing counsel may use to his advantage, a good trial lawyer will either:
i. Acknowledge the bad fact without explaining;
ii. Explain the bad fact;
iii. Use the bad fact to his advantage.
However, the most recommended way is to use the bad fact to an advocate’s advantage. For example in the Faith Mueni’s case, Faith Mueni’s advocate may highlight “My Lord, the other side may try to allude to the fact that my client does not have her expense diary to prove that she was indeed taking care of the household and farm expenses. However, in as much as that is true, Alphonce intentionally took the diary to avoid being accountable.”
c. Speaking only of things touched upon in evidence
Keith Evans in his book Common Sense Rules of Advocacy for Lawyers states that among the mandatory rules that an advocate must follow is that during closing argument; an advocate is to only speak of things touched upon in the evidence adduced. New evidence should not be brought in at this stage.[5]
d. Never putting words into the mouth of a witness
Keith Evans in his book Common Sense Rules of Advocacy for Lawyers further states that during the closing argument an advocate must not say or attempt to say something that a witness did not say. An advocate should stick only to what witnesses actually said.[6]
e. Arguing the law
An advocate should show knowledge of the law. He ought to:
i. Show knowledge of the law;
ii. Argue the law effectively;
iii. Appropriately cite persuasive authority;
iv. Acknowledge opposing authority and distinguish it or argue for change in the law.
f. Effective persuasion and presentation skills
i. Use of visual aids and exhibits
The closing argument is not necessarily confined to only words. An advocate may use visual aids to communicate the theory of his client’s case.
The advocate may also use the exhibits adduced to communicate his theory, for instance:
- Photographs;
- Charts analysis, especially in contract cases;
- Practical demonstrations.
ii. Use of rhetorical questions
The use of rhetorical questions to address the case theory can be persuasive. For Example: If the client was in a different place yet he is being accused of an offence committed elsewhere, the advocate can say, “How can my client be in two places at the same time?”
iii. Maintaining eye contact
The closing argument is meant to be persuasive in order to get a favourable judgement. This means that when delivering the argument, an advocate should try as much as possible not to be reading from any source.
It is often said that ‘the eyes not only see but communicate’.
iv. Use of analogies
Analogy is incorporated to explain and understand the conduct of a human being in reference to everyday human behaviour. A witness’s testimony can thus be strengthened or weakened by comparing her version of events to the widely known experience or activity.[7]
For instance, there are some conducts that everybody will label as unreasonable and that can help in explaining, say, why a defendant’s action falls in that category.
v. Use of triads
This is an art of persuasion by the use of ‘three’. The idea is to communicate in threes in any sentence to develop a persuasive argument.
As a means of communicating rhythmically, memorably, and persuasively, the rule of three is one of the most valuable tools available to a trial advocate. It is believed that the conscious mind is able to best deal with three items in terms of reception, retention and recall.[8]
Example:
In Faith Mueni’s case, her advocate in addressing the question of marriage may say ‘The two pledged to each other their lives, their fortunes and their sacred honour. And that they shall live as man and woman’.
In Desmond Peter’s case, his advocate in discrediting the prosecution case may conclude by pleading to the court via the following: ‘With malice toward none, with charity for all; with firmness in the right, this Honourable court should acquit my client for lack of evidence of the alleged crime.’
vi. Use of allusion
An allusion is a figure of speech that makes reference to a place, person or event. It can be real, imaginary and may refer to anything including fiction, folklore, historical events or religious manuscripts.[9]
An allusion adds a persuasive force to the theory and theme of the case. However, it ought to be used only if the audience is aware of the reference that is being made.
An example, in the Faith Mueni’s case, Faith Mueni’s advocate in referring to Alphonce Muoki might say ‘He was a real Romeo with the ladies.’ (Romeo is the lead character in Shakespeare’s play, Romeo and Juliet, and is considered to be a true romantic hero, and won over Juliet against her family’s wishes).
On the other hand, Alphonce Muoki’s advocate could argue that Alphonce was a Good Samaritan, out of the kindness of his heart he let Faith Mueni live on his farm rent free. (A Good Samaritan was the only one in the Bible who stopped and helped a man in need while the Pharisees and High Priest ignored the man).
vii. Use of simple language
It is essential for an advocate to avoid using legalese. Using plain English guarantees that there will be clarity.
Further, it is prudent to use the pronoun ‘We’ as opposed to ‘I’. For example: “Your Honour, we humbly submit...”
viii. Voice projection
An advocate ought to be audible in a bid to advance his client’s case. He should be capable of passing the intended information with ease. The fact finder should not struggle to hear what the advocate is saying as he might lose interest in the case or important information may bypass him.
Conclusion
Overall, a closing statement offers both parties to a case the ultimate chance to convince, and highlight the evidence adduced during the hearing. Equally, it is the final incidence for the advocate to persuasively communicate his/her closing appeal to the judge as to why case should be ruled in their favour.
Closing arguments are aimed at persuading the court to either favour the prosecution or defence. Debatably, a trial can be won or lost with the closing argument. As a result, closing arguments have been said to be the most consequential component of a trial. This was stated in the case of Herring v New York[10] where the Supreme Court stated that:
“No aspect of (trial) advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment.”
[1] Debra S. Katz, Stanley Sporkin & Michael F. Williams, ‘Opening and Closing arguments’, (2012) pg 13
[2] (2003)eKLR, Criminal Appeal No. 42 of 2002
[3] (2006)eKLR, Criminal Appeal No. 83 of 2005
[4] Steven Lubet, Modern Trial Advocacy(2nd edn Canada, 2000) Chapter 01- Case Analysis, Persuasion and Story Telling, pg 11
[7] Steven Lubet, Modern Trial Advocacy(2nd edn Canada 2000) Chapter 12- Final Argument, pg 16
[10] (1975) 422 U.S 853, 862
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